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Justice Neil Gorsuch was an active questioner in his first U.S. Supreme Court oral
argument April 17, as the court considered federal employees’ judicial review options
under the Civil Service Reform Act.

During the one-hour argument, Gorsuch pressed lawyers representing a former Census
Bureau employee and the Merit Systems Protection Board about how the text of the civil
service law supported their legal positions. The court is considering if an MSPB dismissal
of a “mixed case” for lack of jurisdiction can be reviewed by a federal district court
or if the U.S. Court of Appeals for the Federal Circuit is the former employee’s only
option
(
Perry v. Merit Sys. Prot. Bd.
, U.S., No. 16-399, oral argument
4/17/17
).

Mixed cases are those in which a federal worker appeals a serious personnel action,
such as discharge or suspension, and also alleges that unlawful discrimination motivated
the adverse action. Most MSPB rulings must be appealed to the Federal Circuit, which
gives some deference to the board’s findings. But mixed cases in most circumstances
can go before a district court, which can review the claims anew and doesn’t have
to defer to the MSPB.

A case that hinges on statutory interpretation and the difference between “jurisdiction”
and “procedure”
seemed a fitting start for Gorsuch, known for taking a strict, text-focused view of
the law.

The newest justice suggested that examining the civil service act’s “plain language”
could help to simplify matters. That language suggests civil service issues go to
the Federal Circuit, while discrimination issues go to the district courts, he said.
“What am I missing?” Gorsuch asked.

Simplicity Argument Gets Traction

Arguments about not adding more complexity to the system for handling federal workers’
bias claims got a lot of play from the court, including from the unexpected sources
of Justice Samuel Alito and Chief Justice John Roberts, Michael Foreman, a Penn State
University law professor who submitted an amicus brief for the Metropolitan Washington
Employment Lawyers Association, told Bloomberg BNA April 17.

The justices seemed receptive to the argument that it’s “really hard” to distinguish
between “procedure”
and “jurisdiction,” Foreman said. Expecting federal workers unrepresented by lawyers
to do so would be even more problematic.

The argument “went about as well as it could have” from a federal worker’s perspective,
Foreman said, though it’s always difficult to predict what the court might decide.
But in this case, Foreman said, he anticipates “at the end of the day, it will be
a continuation” of the court’s 2012 decision in
Kloeckner v. Solis.

The court
ruled in
Kloeckner that if the MSPB dismisses a mixed case for procedural reasons, such as the worker’s
failure to file a timely administrative claim, a federal district court can review
the board’s decision. The justices held that district court review is available even
if the MSPB didn’t reach the merits of the worker’s bias claims.

In the present case, the U.S. Court of Appeals for the District of Columbia Circuit
decided Anthony Perry, a former Census Bureau employee alleging bias and retaliation, must
go to the Federal Circuit after the MSPB dismissed his mixed case for lack of jurisdiction.

Misuse of ‘Jurisdiction’ Sows Confusion

Christopher Landau, who represented Perry before the Supreme Court, said the “root
of the problem” is the MSPB’s “misuse” of the word “jurisdiction.”

The board decided the “merits” when it ruled Perry didn’t suffer a serious personnel
action covered by the civil service law because his suspension and retirement were
part of a voluntary settlement, Landau told the court. Perry argued he was coerced
into the settlement as retaliation for his race and age bias claims.

An MSPB decision on the merits of discrimination claims always has been subject to
a federal district court’s de novo review, said Landau, who is with Kirkland & Ellis
in Washington.

It also would make little legal or practical sense to base district court review on
whether the MSPB’s dismissal in a mixed case turned on “procedure” or “jurisdiction,”
Landau said.

The lines between “substance,” “procedure”
and “jurisdiction” are among “the most elusive”
in the law, Landau said. Asking federal workers, often unrepresented by lawyers in
MSPB proceedings, to make those distinctions would be “a fool’s errand,” he said.

Nothing in the Civil Service Reform Act compels the D.C. Circuit’s conclusion, Landau
said. The court should endorse the “simplicity” of holding that all mixed cases dismissed
by the MSPB are reviewable by federal district courts, he said.

“Hopefully, the court will provide the clarity and guidance for federal employees
to proceed with these claims in a just and efficient manner,” Landau told Bloomberg
BNA after the argument.

Uniformity Called Essential

But Brian Fletcher of the Justice Department, in his argument for the MSPB, said Congress
made the Federal Circuit the “default”
court for review of the Protection Board’s decisions.

The mixed case exception shouldn’t apply when the MSPB decides questions relating
to its own jurisdiction, such as which federal agency personnel actions are “appealable”
to the board, Fletcher said.

Federal Circuit review ensures a uniform interpretation of the MSPB’s jurisdiction,
avoiding conflicting readings of the civil service law from federal district courts,
said Fletcher, an assistant to the solicitor general.

Perry’s case raises a jurisdictional issue within the Federal Circuit’s expertise
and it relates solely to the civil service law, not the anti-discrimination laws,
Fletcher said.

Who Decides?

The civil service statute defines a “mixed case” but leaves “completely unaddressed”
who decides if a federal worker’s challenge to agency action is a mixed case, Justice
Elena Kagan said.

Perry alleges he has a mixed case, she said. Kagan asked Fletcher whether there is
any statutory provision to say he doesn’t.

The court already has ruled that MSPB’s dismissals of mixed cases on procedural grounds
can be reviewed by district courts, said Kagan, who wrote the
Kloeckner opinion.

She questioned if there’s any statutory reason to rule MSPB dismissals based on “jurisdiction”
should be treated differently.

Roberts asked how a federal worker with no legal representation could distinguish
between the MSPB’s procedural and jurisdictional rulings in deciding where to seek
review.

Alito questioned whether the government’s position would just add more complexity
to an already confusing system for hearing federal workers’ employment complaints.

“Nobody who’s not a lawyer could read this statute and figure out what they’re supposed
to do,”
Alito said. “It’s “unbelievably complicated.”

Justice Sonia Sotomayor expressed concern that a federal worker in a mixed case forced
to go to the Federal Circuit might never be able to raise his discrimination claims.

But Fletcher said the filing deadlines for discrimination claims would be “tolled,”
or suspended, until the Federal Circuit makes a final determination on the civil service
jurisdiction issue. The worker then could opt for further administrative review of
his bias claims or to take them to district court, Fletcher said.

Perry’s case and others concerning the MSPB’s jurisdiction present “solely a matter”
under the federal civil service law, Fletcher said. Congress’s interest in uniformity
dictates the Federal Circuit should decide, he said.Landau in his rebuttal picked up on the justices’ misgivings about erecting an overly
complicated system for federal workers to navigate.

The court in
Kloeckner said the government’s argument was “too complicated to be correct,”
he said.

The justices should reach the same conclusion in this case, Landau said.

To contact the reporter on this story: Kevin McGowan in Washington at
kmcgowan@bna.com

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